[Congressional Record (Bound Edition), Volume 152 (2006), Part 6]
[Senate]
[Pages 7243-7244]
[From the U.S. Government Publishing Office, www.gpo.gov]




   HEALTHY MOTHERS AND HEALTHY BABIES ACCESS TO CARE ACT--MOTION TO 
                            PROCEED--Resumed


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture on the motion to proceed to S. 23.
  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the standing rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to S. 23: A bill to improve women's access to health 
     care services and provide improved medical care by reducing 
     the excessive burden the liability system places on the 
     delivery of obstetrical and gynecological services.
         Bill Frist, Johnny Isakson, Sam Brownback, John Thune, 
           Thad Cochran, Wayne Allard, John Ensign, Pat Roberts, 
           Larry Craig, Ted Stevens, David Vitter, John McCain, 
           Lamar Alexander, Norm Coleman, Judd Gregg, John Sununu, 
           Craig Thomas.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
motion to proceed to S. 23, a bill to improve women's access to health 
care services and provide improved medical care by reducing the 
excessive burden the liability system places on the delivery of 
obstetrical and gynecological services, shall be brought to a close? 
The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. The following Senators were necessarily absent: the 
Senator from Kansas (Mr. Brownback), the Senator from Montana (Mr. 
Burns), and the Senator from Arizona (Mr. McCain).
  Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden), 
the Senator from Vermont (Mr. Jeffords), and the Senator from West 
Virginia (Mr. Rockerfeller) are necessarily absent.
  I also announce that the Senator from North Dakota (Mr. Conrad) is 
absent due to illness in family.
  I further announce that, if present and voting, the Senator from 
Delaware (Mr. Biden) would vote ``nay.''
  The yeas and nays resulted--yeas 49, nays 44, as follows:

                      [Rollcall Vote No. 116 Leg.]

                                YEAS--49

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Bunning
     Burr
     Chafee
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     DeMint
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Frist
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lott
     Lugar
     Martinez
     McConnell
     Murkowski
     Roberts
     Santorum
     Sessions
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--44

     Akaka
     Baucus
     Bayh
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Clinton
     Crapo
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Graham
     Harkin
     Inouye
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Salazar
     Sarbanes
     Schumer
     Shelby
     Stabenow
     Wyden

                             NOT VOTING--7

     Biden
     Brownback
     Burns
     Conrad
     Jeffords
     McCain
     Rockefeller
  The PRESIDING OFFICER (Mr. Vitter). On this vote, the yeas are 49, 
the nays are 44. Three-fifths of the Senators duly chosen and sworn not 
having voted in the affirmative, the motion is rejected.
  Mr. BYRD. Mr. President, last Wednesday, Senator Ensign introduced S. 
22, the Medical Care Access Protection Act of 2006, a bill that would 
``cap'' legal damages awarded to victims of medical malpractice. 
Senators Santorum and Gregg similarly, just last week, introduced S. 
23, the Healthy Mothers and Healthy Babies Access to Care Act, a bill 
to limit legal damages in cases involving obstetrical and gynecological 
services.
  Today I voted not to invoke cloture on the motions to proceed to 
these two bills, because there has been no debate of these particular 
measures in the 109th Congress. There have been no hearings scheduled 
or held on the bills this year, and their provisions raise questions to 
which West Virginians deserve complete and well-considered responses.
  The situation in West Virginia today is not as it was several years 
ago, when

[[Page 7244]]

the State legislature enacted medical liability tort reform. At that 
time, there was a perceived crisis based on the escalating costs of 
medical insurance premiums, and there were serious concerns that 
doctors and other health care providers may have been leaving the State 
to avoid the expenses they incurred in protecting themselves from legal 
liability. Today, however, even the West Virginia State Medical 
Association, a strong supporter of medical liability reform, advises 
that, based on the significant changes passed by the West Virginia 
State Legislature in 2003, the State has ``already seen positive 
results with recent decreases in insurance premiums and an increase in 
the ability to recruit physicians to the state.''
  Based on the acknowledged success of West Virginia's legislative 
enactments in this area, it would be irresponsible, if not downright 
foolhardy, to enact S. 22 and S. 23 with little examination and no 
recent debate, particularly when the provisions of these bills would 
explicitly preempt certain State laws. In addition, the bills shorten 
the time during which patients can bring cases; they limit punitive 
damages; they exempt from product liability lawsuits health care 
providers who have prescribed drugs or devices approved by the FDA; and 
they generally revamp our Nation's medical liability system in the wink 
of an eye, though the bills' provisions have been subject to little, if 
any, serious scrutiny.
  Based on the changes that have occurred in our medical liability 
system since 2003, legislation of this importance requires careful 
consideration by the Senate's relevant committees of jurisdiction. To 
give such important provisions such short shrift, particularly in this 
changed environment, would do a tremendous disservice to medical 
providers and patients throughout both West Virginia and the Nation.
  Mr. KOHL. Today the Senate once again considered medical liability 
reform bills--S. 22 and S. 23--both of which would impose an arbitrary 
cap on the amount of noneconomic damages--pain and suffering awards--an 
injured patient can receive in a medical malpractice lawsuit.
  This is not the first time the Senate has dealt with such 
legislation. In years past, there were real problems with skyrocketing 
premiums that insurance companies were charging doctors. Even then, 
imposing damage caps was the wrong approach to address the issue and 
remains just as wrong today. A so-called reform based on arbitrarily 
capping pain and suffering awards is not a panacea. Studies show that 
passing a Federal medical malpractice law with damage caps will likely 
have no impact on runaway insurance premiums. Further, there is no 
promise that any savings insurance companies realize from such a law 
would be passed on to doctors.
  Moreover, we find that medical malpractice premiums have leveled off 
or are no longer increasing in both States with and without caps on 
noneconomic damages. A reasonable person could question why we are even 
considering this legislation when it appears the problem is abating. 
Nonetheless, some insist against all evidence that we need to pass 
these bills to save the health care system. Just as I have opposed 
similar damage cap bills in the past, I will oppose both S. 22 and S. 
23.
  Wisconsin has thoroughly addressed this issue with great success. As 
a result, we do not have a medical liability insurance crisis like some 
other States. Wisconsin has a noneconomic cap and a system that works 
for doctors and patients alike. Specifically, Wisconsin limits the 
amount of liability insurance a medical professional must obtain, and 
beyond that, Wisconsin's Patient Compensation Fund ensures that injured 
patients are fully reimbursed for their damages. I oppose doing 
anything to upset the delicate balance the State has found.
  Though neither S. 22 nor S. 23 would preempt Wisconsin's damage caps, 
Wisconsin law would be overturned in several other areas. For example, 
Wisconsin law grants children the right to sue, better ensures that 
victims fully recover their damages from defendants, and does not limit 
attorney fees as much as the Federal proposal. I will not support a 
Federal solution that undoes Wisconsin's law.
  To be sure, the larger issue of medical liability reform deserves a 
serious debate instead of the resurfacing of a one-sided solution. We 
might want to look to Wisconsin as a model.
  Mr. CHAFEE. Mr. President, today I voted in favor of invoking cloture 
on S. 22, the Medical Care Access Protection Act of 2006, and S. 23, 
the Healthy Mothers and Healthy Babies Access to Care Act. I have 
concerns about various aspects of the legislation including the 
specific levels of the proposed damage caps. However, I do believe that 
reform of the medical malpractice system should be considered by the 
Senate to discourage frivolous lawsuits and to ensure that individuals 
are able to access affordable health care. For these reasons, I voted 
to invoke cloture on both of these bills in an effort to move this 
important debate forward.
  The PRESIDING OFFICER. The Senator from Wyoming.

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